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Entailed Property (Disentailment) Act (Cap. 130) Consolidated

ENTA ILED PR OPER TY (DISENTA ILME NT) [CAP. 130. 1

CHAPTER 130

ENTAILED PROPERTY (DISENTAILMENT) ACT*

To provide for the disentailment of property held in tail.

(5th May, 1950)†

Enacted by ACT XII of 1950, as amended by Legal Notice 148 of 1975.

1. This Act may be cited as the Entailed Property

(Disentailment) Act.

2. In this Act, unless the context otherwise requires -

"holder" means the person who on the material date is the lawful holder in tail of things subject to a fideicommissum;
"material date" means the date of coming into force of this Act;
"mo v ab les", n o tw it hstan d i ng any ot her l a w to th e con t rary, includes perpetual annuities in general and, without prejudice to that generality, capitals for annuities ad formam bullae and credits in respect of interest accruing from monies formerly invested in the Ma ssa Frumentaria , and "imm ovabl es" shal l be co nstrued accordingly;
"successor" means the person who, in accordance with the deed of foundation of a fideicommissum, would enter into the enjoyment of the immovables subject to that fideicommissum, with effect from the decease of the holder thereof.
3. As from the material date all fideicommissa of whatsoever nature on movables and immovables, created at any time, whether they be perpetual or temporary, shall be revoked and the property theretofore affected thereby shall be held free from fetters by the hold er of such mov ab les and imm ovab les, sub ject, howev er, to such burdens, hypothecs duly authorized and liabilities as affected the fettered property:
Provided that -
(a) in the case of the indivisible fideicommissa on immovables, the immovables so disentailed shall vest in ownership free from fetters in the holder thereof as to one moiety only, subject to one moiety of the burdens, hypothecs duly authorized and liabilities which affected those immovables on the material date, while the remaining moiety of the immovables so disentailed and subject to the remaining moiety of the aforesaid burdens, hypothecs and liabilities, shall vest free from fetters in the successor (whether or not on the material date the successor be alive) in respect of the ownership subject to the enjoyment thereof for life of the holder. Sub-title 1 of Title III of Part I of Book Second of the Civil Code shall apply to the enjoyments

Short title. Interpretation.

Revocation of

fideicommissa.

Indivisible

fideicommissa.

Cap.16.

*See also the Disentailment of Property (Extension to fiefs) Act (Chapter 212).

†See Government Notice No.234 of 9th May, 1950.

2 CAP. 130.] E N TA IL ED P R OP ERT Y (DISE N TA IL MENT)

Hypothecs on fettered property.

Appointment of successors in fideicommissa.

for life thus established but articles 331, 350, 351, articles from 354 to 362 both inclusive and article
352(3) thereof shall not be applicable. Articles 352(1)
and (2) of the said Civil Code shall not apply to the said life enjoyment while owned by the holder but shall apply in respect of an assignee of that life
enjoyment under article 340 of the said Civil Code;
(b) where property subject to any fideicommissum was, while so subject, burdened by a hypothec on authority granted by a competent court, any such hypothec shall rank in relation to property freed from fetters in virtue of this Act with priority over all other hypothecs;
(c) in the case of indivisible fideicommissa on immovables under which the holder is endowed with the right appointing a successor, the holder thereof shall be entitled to exercise that right of appointment in respect of the successor in that moiety of the property of which, in virtue of this Act, the bare ownership vests in the successor.

Partition of estates in tail.

Amended by: L.N.148 of 1975.

Directions given on disentailment.

Contracts concerning divisible fideicommissa.

4. In any partition of immovable property subject to a fideicommis s um on th e material date and in any act or deed concerning immovable property the successor shall be represented by a curator appointed for that purpose by the Second Hall of the Civil Court or by any competent court. The application praying for the app o intment of a curat o r shal l be sp eciall y not ified to th e presumptive successor, if known and if in Malta at the time the application is filed:
Provided that the successor to the property subject to a fideicomissum if known and in Malta shall always be a party to the proceedings.
5. Any direction in the interest of persons called to succeed under a fideicommissum given by any court on granting a disentailment shall be deemed to be spent as from the material date:
Provided that any such direction if and in so far as referable to immovable property subject to an indivisible fideicommissum or investment of monies in such immovables shall remain in force in respect of the moiety of the immovables subject thereto of which in accordance with the provisi ons of this Act the bare ownership passes in terms of the deed of foundation until that passage takes place.
6. No contract or other act inter vivos made or effected before the material date may be annulled or varied by reason that it had for its object things subject to a divisible fideicommissum.
Prescription. 7. (1) Any extension of the period otherwise necessary for the comple tion of prescription, or dained by any law in respect particularly of things subject to fideicommissum, is hereby declared to be no longer applicable.
(2) The period requisite for the completion of any prescription which has commenced to run previously to the material date, shall

ENTA ILED PR OPER TY (DISENTA ILME NT) [CAP. 130. 3

be ei th er that speci fi ed by the law ob tai n in g p r ev iou s ly to th e material date or that applicable with effect from the material date in accordance with subarticle (1), whichever application of law will lead to the earlier completion of the prescription.
8. This Act shall not apply to rights of advowson or to any fo r m o f ju s pa tronatus in ecc lesiastic al be nefices, or to rights, temporary or perpetual, created either by a deed inter vivos or by a testament, whereby one or more persons are appointed to exercise or to enjoy those rights successively, and the laws now in force concerning any such rights are maintained in respect of them.
*9. Nothing in this Act shall affect the provisions contained in article 761(2) of the Civil Code.

10. All orders and decrees authorizing the sale of entailed property pending on the material date shall lapse, and the property becomes free on such date and this without prejudice to article 5 of this Act.

Right of administration and jus patronatus.

Maintenance in force of article 761 of the Civil Code. Cap. 16.

Transitory provisions.

*This article has been re-numbered in consequence of the omission of the original article 9. That article provided for an exemption from the Succession and Donation Duties Ordinance which was repealed by the Death and Donation Duty Act (Chapter

239). The latter law made different provision and the matter was regulated by the proviso to paragraph (b) of subarticle (4) of article 13 of that Chapter. That chapter

was repealed by the Duty on Documents and Transfers Act (Chapter 364).